Question

Discuss the pros and cons of using the criminal law, as opposed to civil negligence law, to prosecute providers when errors occur. Specifically, what happens to a provider and his license when there is a criminal conviction? What would this mean for medicine as a whole? Justify your position, and use examples.

Answer 1

1) ans) Negligence in tort law means omitting to do an act, which a reasonable man would do or doing such an act which a prudent or reasonable person wouldn’t have done if he had been in the same situation. In other words negligence is the person’s duty of care, which he did not do, which has resulted in injury to another person.

Criminal negligence is when a person does an act which is in regard to the obvious risk to the safety of human life. For an act to be criminal negligence, a prosecutor must prove that-

The person has acted negligently, and has created a high risk of death or bodily injury;

A prudent person had know the consequences of such an act

It should be more than a mistake or excusable accident: for an act to be criminal negligence, it should not merely be a simple carelessness or inattention or a mistake in judgment.

Knowledge of danger must be known: the defendant must know that his act has or may cause danger to other person. And a reasonable person, if had been in the same situation, would have foreseen the risk.

Civil negligence:

in civil negligence cases if the defendant is found negligent he/she can be sued to pay damages which may include medical costs, lost wages, physical or emotional suffering, etc.

A servant in a shop, after mopping the floor forgets to put wet floor sign.

A doctor who misreads the chart and operates a different body part of a patient.

A pharmaceutical company launches drug in the market without testing it can be held negligence

PROS:
• “Sometimes it’s good. Sometimes it’s bad.”
• The rewards of helping people in crisis. “One case stands out of an abducted child we got back. I’ve been in contact with her ever since. And she’s now grown up. I’ve seen great success stories in youth court, too. The success stories always make up for the failures.”
• Developing people skills. “You have to be a person who can deal with people, who understands people, and who likes people. If you’re not a people person, it’s not the area for you. You have to be able to ride the waves.”
• “Communication skills are the most important thing when you’re dealing with people. Especially people who are charged with crimes and who have emotional problems, mental problems, substance-abuse problems. If you can’t communicate your client’s situation to the court, you’re at a loss. If you don’t have those skills, you had better learn how to develop them.”
• “Criminal law is largely an exercise in human understanding and in communication

CONS:

• Finding the time for introspection. “You’re dealing, whether you’re a prosecutor or defence counsel, with a fairly high volume of humanity in distress. You’re dealing with emotions at their rawest, with victims, accused criminals, people at their weakest and most vulnerable. You have to catch your breath in that emotional cauldron. In our business, you can be caught on a treadmill.”
• It can be dangerous dealing with people at their nadir. “You’re not immune from threats. Sometimes I’ve received threats from the most unlikely people. People who had so much to lose. That’s not uncommon.”
• Getting emotionally involved. “You have to keep your distance. Once you get emotionally involved, you lose your impartiality, th juror, representing the attorney general with nothing to win or lose

The legal response to medical errors that do gain legal consideration is typically dominated by one or more of three goals: compensation, accountability and retribution. These each feature, with greater or lesser emphasis, in different national, legal and regulatory regimes Civil law deals with the disputes between individuals, organizations, or between the two, in which compensation is awarded to the victim. Criminal law is the body of law that deals with crime and the legal punishment of criminal offenses.

Even if a conviction does not result in the loss of medical licensure, a criminal conviction can result in loss of employment. Many contracts between physicians and hospitals or practice groups state that any criminal conviction constitutes grounds for termination of the contract, and thus the physician's employment